[2017] KEELC 474 (KLR)
The court found that the applicant's approach of seeking a stay of proceedings and setting aside of orders in the High Court, rather than participating in the Magistrate’s Court proceedings and pursuing an appeal if dissatisfied, was improper. The court held that the dispute before the Magistrate’s Court was...
Source-derived case information.
- Citation
- [2017] KEELC 474 (KLR)
- Parties
- Plaintiff: Merin Ole Tuyoto & 124 Others; Defendant: The Chairman Limanet Group Ranch Committee; Defendant: District Land Registrar; Defendant: The Hon. Attorney General; Defendant: Danson Rikana Sanoe
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 246 of 2017
- Procedural Posture
- Stay Application / Ruling on Amended Notice of Motion for Stay of Proceedings and Setting Aside Orders
- Outcome
- application dismissed
- Judges
- MN Kullow
- Legal Topics
- Stay of Proceedings, Burial Disputes, Ownership of Land, Group Ranch Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Merin Ole Tuyoto & 124 Others
Plaintiff
The Chairman Limanet Group Ranch Committee
Defendant
District Land Registrar
Defendant
The Hon. Attorney General
Defendant
Danson Rikana Sanoe
Defendant
Procedural Posture
Stay Application / Ruling on Amended Notice of Motion for Stay of Proceedings and Setting Aside Orders
Legal Issues
- 1 Whether the court should grant a stay of proceedings in Civil Suit No. 166 of 2017 before the Chief Magistrate’s Court at Narok.
- 2 Whether the court should set aside orders stopping the burial of the applicant's father on parcel No. Cis Mara/Ilmashariani Morijo/1231.
- 3 Whether the application before the court is merited or an abuse of court process.
Ratio Decidendi
The court found that the applicant's approach of seeking a stay of proceedings and setting aside of orders in the High Court, rather than participating in the Magistrate’s Court proceedings and pursuing an appeal if dissatisfied, was improper. The court held that the dispute before the Magistrate’s Court was distinct and should be litigated as such to determine ownership of the specific parcel. The application was deemed unmerited and an abuse of court process, leading to its dismissal.
Court Disposition
application dismissed
Orders
- The amended notice of motion dated 19th December, 2017 is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
ELC CAUSE NO. 246 OF 2017
FORMERLY NAKURU HCC NO. 219 OF 2011
MERIN OLE TUYOTO & 124 OTHERS.......................PLAINTIFFS
-VERSUS-
THE CHAIRMAN LIMANET GROUP
RANCH COMMITTEE...........................................1ST DEFENDANT
DISTRCIT LAND REGISTRAR............................2ND DEFENDANT
THE HON. ATTORNEY GENERAL.....................3RD DEFENDANT
DANSON RIKANA SANOE...................................4TH DEFENDANT
RULING
The Application before me is the Amended Notice of Motion dated 19th December, 2017 seeking orders for stay of proceedings in Civil Suit No. 166 of 2017 before the Chief Magistrate’s Court at Narok and the orders stopping he burial of the Applicants father Tinga Ole Sanoe on parcel No. Cis Mara/Ilmashariani Morijo/1231 and setting aside of the said orders.
The Application was based on the grounds inter alia that parcel No. Cis Mara/Ilmashariani/Morijo/1231 was curved out of parcel No. Morijo 48 which is substantially the suit and that the suit before the Magistrate court will result in conflicting decisions on the matter.
The Application was opposed by the 5th Respondent. The Respondent averred that the deceased was his late father and the registered allottee of parcel No. Cis Mara/Ilmashariani Morijo/1231 and further states that the dispute in the matter before the Magistrate Court is distinct from the one between the Applicant and the Respondent whereas the petition before the High Court is about the entire group ranch and the orders sought to be stayed have been granted.
I have read the Application before me and the replying affidavit on the same and the submissions made by the counsel for the parties and find out that the Applicant has moved to this court simultaneously after the Respondent filed an application before the lower court stopping the burial asking the court to stay the proceedings there. While the application was pending before me, the lower court delivered its ruling.
It is my considered view that the application before me is not merited as the Applicant rather than file the present case ought to have participated in the proceedings before the Magistrate court and if not satisfied with the outcome pursued an Appeal and a stay of the orders of the lower court.
Having said that I must add that the petition before me is by the entire Limanet group ranch where the suit before the lower court is a dispute between the Applicant and the Respondent over a parcel of land which in my view should be litigated upon as such so as to determine who is the owner of the parcel in dispute.
The upshot of the above is that the application dated 19th December, 2017 is unmerited and the same is an abuse of the court process and I dismiss the same with no orders as to costs.
DATED, SIGNED and DELIVERED in open court atNAROKon this22ndday ofDecember, 2017
Mohammed Noor Kullow
Judge
In the presence of:-
Masikonde for the applicant
Onduso for the respondent
CA:Chuma
Mohamed Noor Kullow
Judge
22/12/17